What is an Order of Protection?
An order of protection is a legal remedy for victims of domestic violence. Effectively, it is a civil restraining order issued by a judge that prevents the "abuser" from committing acts of violence against a person, minor child, elderly, or a disabled person. Additionally, the abuser may be prevented from gaining entry in person's home, or coming to the victim's place of work
Domestic abuse is commonly defined as any of the following:
1. Physical abuse - physical force, sexual abuse, behavior that creates immediate risk of physical harm ; OR
2. Harassment - multiple acts of causing disturbance, repeated unwanted contact, threats of abuse, or keeping another person under surveillance, and improperly concealing the minor child from the other parent : OR
3. Willful deprivation - denying minor child, elderly or a disabled person medicine or food - effectively putting that person in harm's way.
Who, and in what situations can a person obtain an Order for Protection?
A Petition for Order of Protection may be filed only a person who has been abused by a family or household member, OR by ANY person on behalf of a minor child, adult who has been abused by family, or by disabled person.
Key here is that ANY person can file so long as it is on behalf of a abused child or adult. For an example, a neighbor can bring forward a petition for order of protection on behalf of the neighboring child if that child has been abused by his or her parents. More commonly, we see spouses filing petitions for order of protection.
Order of Protection can be obtained on an emergency basis, and without notice to the "abuser." After appearing before a Judge and presenting evidence (testimony, pictures, telephone records, witness reports), Judge may issue an Order of Protection for MAXIMUM 21 days. Within 21 days, the Judge will then conduct a full hearing involving both the alleged victim and alleged abuser. Both parties will then have time to present their version of the story.
After this hearing, Judge has authority enter an Order of Protection for maximum 2 years.
Order of Protection proceedings incident to divorce cases are commonly civil proceedings, and are not criminal in nature. However, if there is a violation to an existing Order of Protection - there can be a criminal charge.
Does the immigration status affect an order of protection?
Generally speaking, person's immigration status is not relevant as the court is predominantly concerned with protecting victims of domestic violence. Immigration matters, as a general rule are governed by federal court, and domestic violence court is a state judiciary. There are situations where immigration status may be important. For an example, if there allegations that the "abuser" is seeking to remove the minor child from the United States, the immigration status may questioned by the judge.
It is important to note that persons who have pending petitions for a green card or U.S. Citizenship, U.S. Department of Homeland Security may inquire if the applicant ever had a domestic incident and whether the applicant was found to be an abuser in an order of protection case. Accordingly, a "conviction' in order of protection hearing may have a negative effect on the application for permanent residence, visa, or citizenship.
Gregory Gancarczyk is an Illinois licensed attorney concentrating in all aspects of Family Law.
Mr. Gancarczyk, is a principal in his firm, Gan Law Group (www.ganlawgrup.com). IFor the preceding four years, he was named by Super Lawyers Magazine as a Rising Star in the area of Family Law, a designation reserved for the top 2.5% of all Illinois attorneys under 40.
Mr. Gancarczyk can be reached at firstname.lastname@example.org.